Ceremonies Can’t Hide Flawed Detention Policies in Afghanistan

On Monday, September 10, there was a “splendid ceremony” marking the handover of the United States’ Bagram prison. Yet despite the pomp, the handover hides the real story—the Afghans wanted the event to mark the end of U.S. detention power in Afghanistan, while the United States has had other ideas.

Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power, a new report from the Open Society Foundations, revealed that while Afghan officials have wanted complete control over the Bagram detention facility—also known as the Detention Facility in Parwan (DFIP)–by September 2012, the United States is likely to continue to control a portion of the facility. The Afghan government says that no detentions will be carried out by the U.S. military, while the United States maintains that it “still retains the authority to capture and detain.”

This partial handover has come at a high cost for Afghanistan: To help secure the agreement, the Afghanistan government has created a new internment regime that will allow the Afghan authorities to detain without trial. A number of Afghan officials have called this new regime unconstitutional and fear it will be subject to abuse.

The creation of the Afghan internment regime appears to have been introduced largely at the behest of the United States to both facilitate the handover of U.S. held detainees and to satisfy the U.S. desire for a lasting internment system on the Afghan side into which it could continue to transfer detainees. The system, created last March, closely resembles the U.S. system at Bagram. It was not introduced through legislation or even consultation with Parliament. Instead, it was created through a secret “inter-ministerial agreement” and an unpublished presidential decree that are vaguely worded and ripe for abuse.

There is a danger that this will be the real legacy of Bagram—the creation of a flawed system of detention without trial in a country already wracked by decades of internal conflict, impunity, and weak rule of law. The Open Society Foundations learned that U.S.-Afghan disagreements over these issues led to a temporary suspension of detainee transfers from U.S. to Afghan control, which was resolved only days before the handover deadline.

And yet officials from both sides have proceeded with the handover. In fairness, the majority of U.S.-held detainees have been transferred to the Afghan authorities at enormous speed over the past six months, and U.S. officials in Afghanistan are confronted with genuine challenges for the responsible transferal of detainees. Handling of detainees by the Afghan government carries the potential for politicization and corruption of detainee releases. The capacity of the current government to process and properly prosecute detainees’ cases is weak, and there is the risk that detainees could suffer torture and abuse. These concerns have been compounded by the controversial appointment of a new head for the intelligence directorate.

With the ISAF troop drawdown underway, the United States is trying to thread a tough needle by putting Afghans in the lead on security, while at the same time continuing U.S. military operations, and protecting U.S. personnel. The role of special operations forces, and the reliance on detention operations like night raids, remain central to U.S. military strategy. Despite Afghan demands for sovereignty over night raids, there has been no sign of a decrease in these detention operations or the number of detainees sent to Bagram. The Open Society Foundations learned that since March, the United States has sent an additional 600 detainees into U.S. detention at Bagram, which President Karzai’s national security advisor Rangin Spanta said was “not in accordance with our agreement.”

Not only are these detentions at complete odds with Afghan officials’ unqualified insistence on complete control of the DFIP, and an end to U.S. detentions there, they also highlight another, related disagreement over how long the United States can detain individuals before handing them over to Afghan authorities. “After the signing of the [Detentions] MoU, the time limit to hold a detainee is 72 hours and should be respected,” presidential spokesperson Aimal Faizi told the Open Society Foundations.

Another unresolved issue is that of “third country nationals,” or non-Afghan detainees. These detainees still remain in U.S. custody at the DFIP. Their fate is uncertain and they are at risk of falling into a legal limbo of indefinite detention. The stalemate over non-Afghan detainees ensures that the United States will continue to retain at least some portion of the DFIP for the foreseeable future, raising the troubling specter of another Guantanamo in Afghanistan.

One of the principal criticisms of Bagram was its lack of legitimacy in the eyes of many Afghans—its secrecy; its prolonged detentions without trial; its lack of access for lawyers; and its potential for abuse of detainees. One has to wonder whether this is precisely what the United States has handed over to Afghanistan.

Agreeing to vaguely worded agreements that permit the U.S. and Afghan governments to interpret their obligations in starkly different ways may serve immediate political interests, but it is no way to build a lasting, legitimate or lawful framework for detentions and ongoing military operations. Both governments have failed to resolve fundamental differences over the future of U.S. detention power in Afghanistan and have presented the situation very differently to the Afghan and American publics. These tough questions will be answered another day, it seems, as is often the case in Afghanistan.